The Role and Duty of Traditional Leadership in Strengthening the Insecure Land Rights of Rural Communities in South Africa

Authors

DOI:

https://doi.org/10.25159/2520-9515/17696

Keywords:

traditional leaders, rural communities, land rights, insecure land tenure, land allocation, living customary law, SPLUMA

Abstract

This paper delves into the persistent challenges of insecure and weak land rights among rural landholding communities in South Africa, despite constitutional protections and legislative efforts. Section 25(6) of the Constitution mandates the provision of legally secure tenure or comparable redress for communities and individuals affected by historically discriminatory land practices. Over the last 25 years, Parliament has enacted several laws aimed at rectifying the issue of insecurity of land tenure. However, these legal measures have repeatedly fallen short of addressing the issue of informal land rights of rural communities.

What has bedevilled these laws, among other things, is their failure to reflect the voices of rural communities on how best to secure and strengthen their land rights in a manner that gives effect to the “living customary law” they observe and follow. Instead, the enacted laws have often mirrored the interests of traditional leaders who, under the misconception of ownership, exert control over land and its allocation within their jurisdictions. This paper adopts a desktop approach to examining the legislative efforts undertaken to strengthen the security of land tenure and the possible reasons why these efforts have been fruitless so far. By focusing on the lived experiences of some of these communities and the operational dynamics of living customary law, the research highlights that the voices of rural communities (as evidenced by real life examples, which will be unpacked in detail), guided by living customary law, are indispensable to addressing this issue. The findings suggest a need for the government, traditional leaders and Parliament to listen to rural voices.

References

Bennett, T., and C. Murray. 2013. “Traditional Leaders.” In Constitutional Law of South Africa, edited by S. Woolman and M. Bishop, 1–71. Cape Town: Juta.

Bennett, T. 2008. “Official v Living Customary Law: Dilemmas of Description and Recognition.” In Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by A. Claassens and B. Cousins, 138. Cape Town: UCT Press.

Bikam, P., and J. Chakwazira. 2014. “Involvement of Traditional Leadership in Land Use Planning and Development Projects in South Africa: Lessons for Local Government Planners.” International Journal of Health Sciences and Research 4: 142–452.

Centre for Environmental Rights. 2021. “Community Activists Protesting Devastating Impacts of Coal Mine Shot at and Arrested.” Accessed January 10, 2025. https://cer.org.za/news/community-activists-protesting-devastating-impacts-of-coal-mine-shot-at-and-arrested

Claassens, A., and S. Ngubani. 2008. “Women, Land and Power: The Impact of the Communal Land Rights Act.” In Land, Power & Custom: Controversies generated by South Africa’s Communal Land Rights Act, edited by A. Claassens and B. Cousins, 154–183. Cape Town: UCT Press.

Cousins, B. 2008. “Contextualising the Controversies: Dilemmas of Communal Tenure Reform in Post-Apartheid South Africa.” In Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by A. Claassens and B. Cousins, 3–33. Cape Town: UCT Press.

Delius, P. 2008. “Contested Terrain: Land Rights and Chiefly Power in Historical Perspective.” In Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by A. Claassens and B. Cousins, 211–237. Cape Town: UCT Press.

Guy, J. 2018. “An Accommodation of Patriarchs: Theophilus Shepstone and the Foundations of the System of Native Administration in Natal.” Journal of Natal and Zulu History 32(1): 81–99. https://doi.org/10.1080/02590123.2018.1473996 DOI: https://doi.org/10.1080/02590123.2018.1473996

Jingoes, J. A. 1975. Chief is a Chief by the People: The Autobiography of Stimela Jason Jingoes. Cape Town: Oxford University Press.

Kompi, B. 2018. “The Evolution of Traditional Leadership in South Africa, 1996–2012: Traditionalism versus Modernism.” PhD thesis, University of the Free State.

Mabuza, E. 2021. “Activists Challenge the Traditional Leadership and Khoisan Act.” Business Live, December 21. Accessed January 23, 2022. https://www.businesslive.co.za/bd/national/2021-12-21-activists-challenge-traditional-and-khoi-san-leadership-act/

Masiya, T. 2024. “Traditional Leaders in the Democratic South Africa – Opportunities, Controversies and Implications for Local Governance.” In Municipal Governance, Traditional Leadership and Land Management in South Africa: Challenges and Lessons Learnt, edited by K. Paul, R. Purshottama, and W. Henry, 21–42. University of Johannesburg Press.

Matereko, S., and O. Olufeni. 2024. “The Nexus Between Traditional Leadership and Municipal Governance: An Examination of Land Use in South Africa.” In Municipal Governance, Traditional Leadership and Land Management in South Africa: Challenges and Lessons Learnt, edited by K. Paul, R. Purshottama, and W. Henry, 67–84. University of Johannesburg Press.

Nel, V. 2015. “SPLUMA, Zoning and Effective Land Use Management in South Africa.” Urban Forum Journal 27(1): 79–92. https://doi.org/10.1007/s12132-015-9265-5 DOI: https://doi.org/10.1007/s12132-015-9265-5

Ntsebeza, L. 2008. “Chiefs and the ANC in South Africa: The Reconstruction of Tradition?” In Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by A. Claassens and B. Cousins, 238–261. Cape Town: UCT Press.

Nzimakhwe, I. 2023. “Municipal Governance and Land Allocation: Addressing Political Dynamics and Policy Changes in South Africa.” In Municipal Governance, Traditional Leadership and Land Management in South Africa: Challenges and Lessons Learnt, edited by P. Reddy, H. Wissink, and P. Kariuki, 85–103. University of Johannesburg Press.

Ogendo, O. 2008. “The Nature of Land Rights under Indigenous Law in Africa.” In Land, Power & Custom: Controversies Generated by South Africa’s Communal Land Rights Act, edited by A. Claassens and B. Cousins, 84–105. Cape Town: University Press.

Oomen, B. 1996. “Talking Tradition: The Position and Portrayal of Traditional Leadership in Present Day South Africa.” Unpublished MA thesis, University of Leiden.

Panday, N. 2024. “The Invasion of Municipal Land: A View from Practice.” Dullah Omar Institute. Local Government Bulletin 19(4). Accessed January 9, 2025. https://dullahomarinstitute.org.za/multilevel-govt/local-government-bulletin/archives/volume-19-issue-4-november-december-2024/the-invasion-of-municipal-land-a-view-from-practice

Pickering, J., and A. Motala. 2021. “The Abuse of Interdicts by Traditional Leaders in South Africa.” In Land, Law and Chiefs in Rural South Africa: Contested Histories and Current Struggles, edited by W. Beinhart, R. Kingwill, and G. Capps, 121–140. Johannesburg: Wits University Press. https://doi.org/10.18772/22021056796.12 DOI: https://doi.org/10.18772/22021056796.12

Poswa, X. 2023. “Court Prohibits Traditional Leader from Allocating Municipal Land.” Dullah Omar Institute. Local Government Bulletin 18(3). Accessed January 10, 2025. https://dullahomarinstitute.org.za/multilevel-govt/local-government-bulletin/archives/volume-18-issue-3-september-2023/court-prohibits-a-traditional-leader-from-allocating-municipal-land

Poswa, X. 2023. “The Role of Municipalities in Protecting Rural Communities against Possible Harmful Mining.” Dullah Omar Institute. Local Government Bulletin 18(4). Accessed July 20, 2024. https://dullahomarinstitute.org.za/multilevel-govt/local-government-bulletin/archives/volume-18-issue-4-november-december-2023/the-role-of-municipalities-in-protecting-communities-against-possible-harmful-mining

Poswa, X. 2023. “What Happens when Government Fails to Listen to Rural Voices: Constitutional Court Declares Traditional and Khoisan Leadership Act Unconstitutional.” Dullah Omar Institute. Local Government Bulletin 18(3). Accessed July 18, 2024. https://dullahomarinstitute.org.za/multilevel-govt/local-government-bulletin/archives/volume-18-issue-3-september-2023/what-happens-when-government-fails-to-listen-to-rural-voices-constitutional-court-declares-traditional-and-khoisan-leadership-act-unconstitutional

Rautenbach, C. 2019. “Mapping Traditional Leadership and Authority in Post-Apartheid South Africa.” In Decentralisation and Constitutionalism in Africa, edited by C. M. Fombad and N. Steytler, 1–38. Cape Town: Oxford University Press.

Responsible Mining Foundation. 2021. Harmful Impacts of Mining. Accessed August 20, 2022. https://www.responsibleminingfoundation.org/app/uploads/RMF_Harmful_Impacts_Report_EN.pdf

Skweyiya, Z. 2017. “Chieftaincy: The Ethnic Question and the Democratisation Process in South Africa.” Dullah Omar Institute. Accessed July 10, 2024. https://dullahomarinstitute.org.za/about-us/our-historical-publications/chieftaincy-the-ethnic-zola-skweyiya.pdf

Steyn, D., and N. Damba-Hendrik. 2021. “Battle to Stop 22km Long Mine on Wild Coast.” GroundUp. July 28. Accessed January 10, 2025. https://groundup.org.za/article/xolobeni-where-discovery-rare-minerals-has-led-violence/

Cases

Baleni and Others v Minister of Mineral Resources and Others 2018 (2) SA 453 (ZAGPPHC)

Mogale and Others v Speaker of the National Assembly and Others 2023 (6) SA 58 (CC)

Tongoane and Others v Minister of Agriculture and Land Affairs and Others 2010 (8) BCLR 741 (CC)

Legislation

Communal Land Rights Act 11 of 2004

Constitution of the Republic of South Africa, 1996

Interim Constitution of the Republic of South Africa Act 200 of 1993

Native Administration Act 38 of 1927

Spatial Planning and Land Use Management Act 16 of 2013

Traditional Leadership and Governance Framework Act 41 of 2003

Traditional and Khoisan Leadership Act 3 of 2019

Published

2025-07-24

How to Cite

Poswa, Xavia. 2025. “The Role and Duty of Traditional Leadership in Strengthening the Insecure Land Rights of Rural Communities in South Africa”. Journal of Law, Society and Development, July, 19 pages. https://doi.org/10.25159/2520-9515/17696.

Issue

Section

Articles